SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3585-17T4

ERIN MCDERMOTT, 

M. STEPHEN MCDERMOTT, 

and PATRICIA MCDERMOTT,

Plaintiffs-Respondents, 

v. 

GENESIS HEALTHCARE d/b/a

SUMMIT RIDGE CENTER, 

Defendant-Appellant,

and

PRADIP S. SHAH, M.D., PHILIPPE

CHEMALY, D.O., HARESH KANE, 

M.D., HELEN KELLMAN, L.P.N., 

BARBARA HUDNALL, L.P.N., 

BARBARA (BABBETT) FOGARTHY, R.N.,

JANET OKECHUKWU, R.N., 

JEAN HAMILTON, R.N., 

ISLANE CHARLES, R.N., 

FARAH ROMULUS, L.P.N., 

DAWN ROBINSON, L.P.N., 

FUNMILOLA ADEWALE, R.N., 

MARIE PICAUD, R.N., 

CORA-ANNE CHANDLER, R.N., 

ELIZABETH OYAREBU, R.N., 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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NICOLETTE PHILIPPE, L.P.N., 

GRACE OKAFOR, L.P.N.,

ERIC NAMACHE, R.N.,

SYLVERIA OHIRI, R.N., and

ANNE JULES, L.P.N., 

Defendants. 

_____________________________

Argued June 18, 2019 – Decided July 22, 2019

Before Judges Koblitz and DeAlmeida.

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Docket No. L-6115-16.

Shane P. Simon argued the cause for appellant 

(Buchanan Ingersoll & Rooney, PC, attorneys; David 

L. Gordon, Eric D. Heicklen and Shane P. Simon, of 

counsel and on the brief).

Respondents have not filed a brief.

PER CURIAM 

Defendant 20 Summit Street Operations, LLC d/b/a Summit Ridge Center 

(Summit Ridge)1appeals from a February 16, 2018 order denying its motion to 

compel arbitration as well as a March 29, 2018 order denying reconsideration. 

 

1 Counsel for Summit Ridge indicated that plaintiffs improperly pled Summit 

Ridge as "Genesis Healthcare d/b/a Summit Ridge Center."

 
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Plaintiff Erin McDermott2 was a patient at Summit Ridge, a licensed skilled 

nursing center. After denying defendant's request for limited discovery on the 

issue, the motion court determined plaintiff was mentally incompetent when she 

signed the arbitration agreement upon admission to Summit Ridge. The court 

also determined that defendant had waived its right to arbitration in pre-motion 

litigation by moving to set aside default. We disagree and remand for limited 

discovery on the issue of plaintiff's competence to enter into the arbitration 

agreement.

On the return date of the motion to compel arbitration in February 2018,

plaintiffs' counsel opposed arbitration, arguing for a plenary hearing to resolve 

the "threshold issue" of Erin's mental capacity to enter into the contract. In 

response, defendant sought limited discovery on this issue. The motion court,

however, adopted a position advocated by neither side, stating it did not need a 

hearing, or further discovery, but could decide the issue based on the 

certifications of Erin and her parents as well as the medical records submitted 

by plaintiffs. The court also found it "a little disingenuous" for defendants to

move for arbitration after successfully vacating default. The court found 

 

2 Erin McDermott and her parents are plaintiffs. We will refer to them by their 

first names, intending no disrespect.
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plaintiff was prejudiced by the "inordinate" delay between the filing of the 

complaint in September 2016 and the request for discovery concerning mental 

capacity.

3

 The court found that when default was vacated in September 2017, 

plaintiff was entitled to assume that the matter would proceed to a disposition

in court.

We review a decision to deny arbitration as of right, using a de novo 

standard of review. GMAC v Pittella, 205 N.J. 572, 586-87 (2011); R. 2:2-

3(a)(3); Coast Auto. Grp., Ltd. v. Withum Smith & Brown, 413 N.J. Super. 363, 

369 (App. Div. 2010).

Our Supreme Court recently reasserted, relying on Guidotti v. Legal 

Helpers Debt Resolution, L.L.C., 716 F.3d 764 (3d Cir. 2013), that discovery 

regarding the entry into an arbitration agreement is proper in the Superior Court. 

Goffe v. Foulke Mgmt. Corp., ___ N.J. ___, ___ (2019) (slip op. at 31-35).

When the contract as a whole is attacked, not the situation here, the arbitrator 

should decide the issue. Id. at 35.

The medical records relied upon by the court were attached to 

certifications and did not directly address Erin's ability to enter into an 

 

3

 The complaint was administratively dismissed, and then reinstated with 

default granted in July 2017. That default was set aside in September 2017 and 

a motion to compel arbitration filed in January 2018.
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arbitration contract. It is uncontested that at the time she was admitted to 

Summit Ridge, Erin was a forty-three-year-old disabled adult, with many 

physical and mental issues. Her ability to enter into an arbitration agreement 

when she was admitted to Summit Ridge, however, is disputed. Plaintiff has the 

burden of demonstrating by clear and convincing evidence that she was 

incapacitated. Jennings v. Reed, 381 N.J. Super. 217, 227 (App Div. 2005) 

(noting that a party moving to set aside an agreement "has the burden of proving 

his incapacity or incompetence to contract or other extraordinary circumstance 

sufficient to vitiate the agreement"). Agreements to arbitrate are treated like any 

other contract. See, e.g., Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430, 

442 (2014) ("An agreement to arbitrate, like any other contract, 'must be the 

product of mutual assent, as determined under customary principles of contract 

law.'") (quoting NAACP of Camden Cty. E. v. Foulke Mgmt., 421 N.J. Super. 

404, 424 (App. Div. 2011)). Defendant is entitled to pursue limited discovery 

on that issue. See Guidotti, 716 F.3d at 776 (When an agreement to arbitrate is 

in issue, the parties should engage in limited discovery on the issue of 

arbitrability before the court considers a renewed motion to compel arbitration.)

Additionally, defendant had to vacate default in order to pursue its claim 

of arbitration, so to label such a tactic misleading to plaintiffs is not completely 
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accurate. Extensive litigation prior to seeking to enforce an arbitration 

agreement may defeat the motion. See Cole v. Jersey City Med. Ctr., 215 N.J. 

265, 268-69, 283-84 (2013) (finding the defendant waived its ability to enforce 

an arbitration agreement where it "engaged in all of the usual litigation 

procedures for twenty-one months and, only on the eve of trial, invoked its right 

to arbitrate"). Here, however, extensive litigation did not take place.

Reversed and remanded for further proceedings. We do not retain 

jurisdiction.